The Massachusetts Appeals Court ruled last week that the Berkshire Museum was not at liberty to sell its artworks on view at Sotheby’s, including two famous paintings by Norman Rockwell. The court decided that such sales would violate prior trusts. Yet this decision is a mistake, as it will limit the ability of nonprofit institutions to respond to changing conditions and evolve their missions.
Consider the situation of the museum. It is in an out-of-the-way part of western Massachusetts, doesn’t have a strong local donor base, and is running unsustainable deficits. The institution isn’t just an art museum; it also has history and natural science collections. It wants to help fund those other programs and become a high-tech landmark. Admittedly, that doesn’t reflect the preferences of many art lovers in the community, and it isn’t exactly the original intent of the museum. But the board of the Berkshire Museum made a decision to just shift focus, not to tear up the institution and start all over again.
Many other American art museums have moved into contemporary art, or to feature art by minorities and women, or to build extensive online displays, as evolutions of their founding principles. Not everyone is happy with those decisions either, but that isn’t generally a reason for the law to intervene. Instead, museums commonly move into new areas where they can be strong and discard some older activities. As more years pass and technology continues to revolutionize America, it will become increasingly obvious that not every institution set up as an art museum should or will be able to continue to display art.
The paintings for sale were not going to be destroyed, and they might have ended up where more people would see them. Even if private collectors bought the two Rockwells, paintings of that quality usually end up being donated to major museums and or lent to exhibitions.
The sad truth is that the people running the Berkshire Museum just don’t care that much about American art any more, at least not from an institutional point of view. Given that reality, it’s actually better if they are not entrusted with important artworks.
The court’s decision now means it will be hard to pull off the sale with fully clear rights to the titles, although the court’s judgment will be re-examined in December. Both the uncertainty and the surrounding negative publicity will scare off buyers and may spoil the market for a long time to come.
In general, I favor sticking to contracts for contracts’ sake. But a previous decision by the Berkshire County Superior Court found that the sale would violate existing laws or agreements. Heirs of Norman Rockwell are arguing he wanted the paintings kept in the community. There is some circumstantial evidence to that effect, but no clear contractual commitment. Community pressures, local self-interest and a general suspicion of commerce in the nonprofit art world have created a series of cascading pressures for the court to take a very expansive and very specific view of the museum’s obligations to the community. The rights issues are muddled, while practical and utilitarian factors suggest letting the paintings go and the museum regroup.
Unlike some commentators in this debate, I don’t view the buying and selling of paintings as a tainted activity in moral terms. Much of the Italian Renaissance was conducted — and created — on an explicitly commercial basis. For that matter Rockwell himself, in his own time and for many years afterward, was derided for having an excessively commercial emphasis. To many it feels like “dirty business” when a museum sells art, but artworks sometimes need to change location to stay relevant, just as museums may need to shift their focus. Dynamism has long been a strength of the American nonprofit arts, and we should be reluctant to put the courts in a position to thwart or micromanage the reallocation of resources.
Circa the 1990s, the Barnes Foundation was running out of money, and so the courts eventually allowed its collection to be taken out of the original house in Merion, Pennsylvania, moved to Philadelphia and absorbed by the Philadelphia Museum of Art, contradicting the terms of Albert C. Barnes’s bequest. The alternative would have been closing down the collection. Along these lines, the Berkshire Museum argues it will go out of business unless it can sell the artworks. That may be a more subjective judgment, but nonetheless art should be owned by institutions that view it as a vital part of their future. That kind of outcome is what markets tend to bring about.
With this court decision, Massachusetts is moving America’s art world in the wrong direction. The eventual cost may be a politicization of the arts sector and a loss of creative dynamism.
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